Standing Committee on Unauthorized Practice of Law

Robert V. Ward, chair

The Standing Committee on Unauthorized Practice of Law (UPL) is charged with two duties: it investigates complaints alleging that individuals or business entities are engaged in the unauthorized practice of law, and it issues opinions as to whether specific conduct constitutes the unauthorized practice of law.

So far this year, 48 complaint investigations were closed. Of these, 1 resulted in a signed letter agreement; 1 was referred to the Office of the Attorney General for civil prosecution; 8 were referred to commonwealth’s attorneys for criminal prosecution; and 1 was referred to the U.S. Attorney’s Office. Twenty-seven complaints were carried over from previous years, and 95 new complaints were opened. Assistant ethics counsel also reviewed and answered 61 complaints in which it was determined that, based on the information provided, there was no unauthorized practice of law in Virginia that warranted a formal investigation by the committee.

The committee received no new opinion requests in fiscal year ending 2009. The following two opinions that were carried over from FY2008 were approved by the Supreme Court of Virginia on February 27, 2009:

UPL Opinion 213 found it to be the unauthorized practice of law for a retired member of the Virginia State Bar on associate membership status, who owns an undivided interest in a tract of land, to represent the interests of other landowners as well as his own, to verify the ownership of other undivided interests, and to negotiate and prepare an easement deed .

UPL Opinion 214 found it to be the unauthorized practice of law for an individual who is a certified public accountant and not a attorney licensed in any jurisdiction to independently offer to provide customers in Virginia services related to arbitration, including representation, and charging a fee for those services and representations.

The committee worked with the Standing Committee on Legal Ethics to issue Legal Ethics Opinion 1845, “Use of Covert Tactics by the Virginia State Bar in Unauthorized Practice of Law Investigations.” The opinion concludes that a lay investigator’s undercover “sting” operation, conducted under the direction of ethics counsel, does not violate the Rules of Professional Conduct. The opinion notes that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law. Government lawyers, however, are generally allowed to supervise undercover operations to gather information about criminal conduct. The Ethics Committee saw no principled distinction to be drawn between these types of investigations, in which undercover operations have been approved, and the UPL investigation presented in this hypothetical. The opinion was issued as final on June 16, 2009.

The committee has drafted a proposal to revise the current Virginia statute and increase the penalty for the unauthorized practice of law to a felony in certain specific situations. Under the proposal, unauthorized practice of law would be a felony in two situations:

If the defendant holds himself or herself out as a lawyer and receives an economic benefit for service rendered, and the victim suffers an economic loss of $200 or more.

If a disbarred lawyer continues to practice law and derives economic benefit from that activity.

The penalty for technical unauthorized practice of law violations or instances where there is no harm to the victim will continue to be a misdemeanor and will not be increased to a felony. The VSB Council approved the proposal at its meeting in June 2009, and the proposal will be put on track for presentation to the General Assembly.

The committee began work on a program for educating immigrants in the Hispanic and Asian communities in Virginia about immigration fraud and the dangers of dealing with unauthorized immigration consultants. The program will provide information and resources to these communities regarding how to contact the U.S. Citizenship and Immigration Services and how to verify the credentials of the person or organization that has offered to provide immigration services.

I would like to thank the committee members — Vice Chair David P. Bogardus, Wells H. Byrnes Sr., Christine L. Poarch, Joseph C. Fleig, Robert R. Bock, Sharon D. Nelson, Edward L. Weiner, and Sean C. Workowski for their hard work and dedication to the mission of the UPL Committee during the past year.